, JUR5901
ASSIGNMENT 3 2026
DUE 28 SEPTEMBER 2026
The Quest for a Constitutionally Compliant Connecting Factor for the Proprietary Consequences
of Marriage: A Comparative Analysis of European Continental and Anglo-American Approaches in
Light of South African Law Reform
South Africa's common law rule of lex domicilii matrimonii, which ties the proprietary
consequences of marriage to the husband's domicile at the time of the marriage, has been
declared unconstitutional for unfairly discriminating on the grounds of gender and sexual
orientation.¹ The South African Law Reform Commission's Discussion Paper 160 proposes a draft
section 2(5) of the Divorce Act that would replace this rule with a hierarchical cascade of
connecting factors, beginning with party autonomy and then moving through common domicile,
common habitual residence, common nationality, and the closest connection.² To assess the
feasibility of this proposal, a comparative analysis of the connecting factors used in two European
Continental systems, Germany and the Netherlands, and two Anglo-American systems, England
and the United States, is instructive.
In the European Continental tradition, Germany has moved decisively away from domicile-based
connecting factors. German private international law for matrimonial property is governed by
Article 15 of the Introductory Act to the Civil Code, which employs a tiered system beginning with
party autonomy: spouses may choose the law of a state of which one of them is a national or in
which one of them has habitual residence.³ Absent such a choice, the applicable law is that of the
state of which both spouses are nationals at the time of marriage, or if they are not common
nationals, the law of their common habitual residence, or failing that, the law of the state with
which they are most closely connected.⁴ Nationality and habitual residence are thus the primary
objective connecting factors, with habitual residence defined as a factual concept denoting the
centre of a person's living interests for an extended period.⁵ The Netherlands, operating within the
European Union framework, has adopted a similar approach through the EU Matrimonial Property
Regulation, which prioritises party autonomy and then applies the law of the spouses' first
common habitual residence after marriage, or in its absence, their common nationality at the time
of marriage, with a subsidiary closest-connection rule.⁶ Both systems reflect a continental
European consensus that domicile, particularly a domicile artificially attributed to a wife through
marriage, is an anachronistic connecting factor, and that nationality and habitual residence are
more stable and equitable bases for determining the applicable law.⁷
The Anglo-American systems present a more complex picture. In England, the traditional rule is
that the proprietary consequences of marriage are governed by the law of the matrimonial
domicile, which is the husband's domicile at the time of marriage.⁸ However, English law
distinguishes sharply between movable and immovable property: the lex domicilii governs
movables, while immovables are subject to the lex situs.⁹ This scission between movables and
ASSIGNMENT 3 2026
DUE 28 SEPTEMBER 2026
The Quest for a Constitutionally Compliant Connecting Factor for the Proprietary Consequences
of Marriage: A Comparative Analysis of European Continental and Anglo-American Approaches in
Light of South African Law Reform
South Africa's common law rule of lex domicilii matrimonii, which ties the proprietary
consequences of marriage to the husband's domicile at the time of the marriage, has been
declared unconstitutional for unfairly discriminating on the grounds of gender and sexual
orientation.¹ The South African Law Reform Commission's Discussion Paper 160 proposes a draft
section 2(5) of the Divorce Act that would replace this rule with a hierarchical cascade of
connecting factors, beginning with party autonomy and then moving through common domicile,
common habitual residence, common nationality, and the closest connection.² To assess the
feasibility of this proposal, a comparative analysis of the connecting factors used in two European
Continental systems, Germany and the Netherlands, and two Anglo-American systems, England
and the United States, is instructive.
In the European Continental tradition, Germany has moved decisively away from domicile-based
connecting factors. German private international law for matrimonial property is governed by
Article 15 of the Introductory Act to the Civil Code, which employs a tiered system beginning with
party autonomy: spouses may choose the law of a state of which one of them is a national or in
which one of them has habitual residence.³ Absent such a choice, the applicable law is that of the
state of which both spouses are nationals at the time of marriage, or if they are not common
nationals, the law of their common habitual residence, or failing that, the law of the state with
which they are most closely connected.⁴ Nationality and habitual residence are thus the primary
objective connecting factors, with habitual residence defined as a factual concept denoting the
centre of a person's living interests for an extended period.⁵ The Netherlands, operating within the
European Union framework, has adopted a similar approach through the EU Matrimonial Property
Regulation, which prioritises party autonomy and then applies the law of the spouses' first
common habitual residence after marriage, or in its absence, their common nationality at the time
of marriage, with a subsidiary closest-connection rule.⁶ Both systems reflect a continental
European consensus that domicile, particularly a domicile artificially attributed to a wife through
marriage, is an anachronistic connecting factor, and that nationality and habitual residence are
more stable and equitable bases for determining the applicable law.⁷
The Anglo-American systems present a more complex picture. In England, the traditional rule is
that the proprietary consequences of marriage are governed by the law of the matrimonial
domicile, which is the husband's domicile at the time of marriage.⁸ However, English law
distinguishes sharply between movable and immovable property: the lex domicilii governs
movables, while immovables are subject to the lex situs.⁹ This scission between movables and
